TAI THI HUYEN v. DIRECTOR OF IMMIGRATION

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

 Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 13 June 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 22 May 2022 (the “2022 Notice”) refusing her request to make a subsequent claim (the “Request”).

2.  The Applicant is a Vietnamese national, aged 53.  She had previously sneaked into Hong Kong from Mainland China on 28 November 2013 and lodged a non‑refoulement claim with the Director on 13 March 2014.  Her claim was rejected by the Director’s decision in his Notice of Decision dated 17 October 2016 (the “2016 Notice”).  Her appeal against the 2016 Notice was dismissed by the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 13 March 2018 (the “2018 Decision”).  She was repatriated back to Vietnam on 6 April 2018. 

3.  On 18 February 2022, the Applicant was arrested by the police. She claimed to have sneaked into Hong Kong again on 1 January 2022.  On 2 March 2022, the Immigration Department received her Request by letter dated 22 February 2022 for making a subsequent claim.  Her Request was refused by the Director’s 2022 Notice.  She now seeks leave to apply for judicial review of that notice.

The law

4.  Under the Unified Screening Mechanism, a person who has previously made a non-refoulement claim may not make a subsequent claim except pursuant to section 37ZO of the Immigration Ordinance.  The section requires an applicant to show to the satisfaction of an immigration officer: (i) a significant change of circumstances since the previous claim was finally determined or withdrawn; and (ii) that the change, when taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a realistic prospect of success.  In deciding whether the applicant may make a subsequent claim, the immigration officer may take into account any finding of credibility or fact made by the immigration officer or the Board in relation to the previous claims made by the applicant.

The previous claim

5.  In her previous claim, the Applicant claimed, if returned to Vietnam, she will be harmed or even killed by a moneylender (the “first moneylender”) for being unable to repay a loan owed to him.  The immigration officer who assessed her previous claim (the “previous case officer”) found among other things that she could access state protection and relocate to Ho Chi Minh City to avoid or lower the perceived risk of harm from the first moneylender and his followers.  The Board did not accept her evidence about the threats and attacks by the first moneylender.  It also found as did the previous case officer that she could avoid the risk of harm, should there be any, by seeking state protection and internal relocation.

The intended subsequent claim

6.  In the intended subsequent, the Applicant claimed that soon after her repatriation back to Vietnam, the first moneylender located her and threatened her again.  As she could not pay, his men cut off the tendons in her fingers, palm and forearm.  She was hospitalized and received 60 stitches.  She reported the incident to the police after her discharge from hospital.  The police only reconciled her case and encouraged her to settle her debt but did not give her protection.  She moved to Hai Phong where she stayed for two years.  There, she was located by the first moneylender’s men twice.  She escaped on the first occasion but they broke her leg on the second occasion.  She was hospitalized for half a year.  After her discharge from hospital, she lived with her brother.  Then, her brother introduced her to another moneylender (the “second moneylender”) who lent her 500 million Vietnamese Dongs for her to start a real estate business in 2021.  Her business failed because of the COVID epidemic.  Before long, the first moneylender located her brother and went to her brother’s home to look for her.  She hid herself and escaped the attention of the first moneylender.  Realising that she was in danger, her brother financed her passage to Hong Kong.  After arriving in Hong Kong, she learned that both moneylenders harassed her brother for the purpose of extracting information of her whereabouts and threatened to chase after her. 

7.  The immigration officer assessed the Applicant’s claim on the basis of the case as she asserted and her documents, except the hospital bills relating to her treatment for Covid in Hong Kong, are genuine and referable to the threats and injuries inflicted on her.  He found, even accepting that the Applicant was facing new threats from the second moneylender and that she had been attacked by the first moneylender’s men twice since her return to Vietnam, her dispute with her second moneylender is of the same nature as her dispute with the first moneylender.  These disputes are private monetary disputes.  There is no evidence that her two moneylenders are government officials or acting under the authority of the state or at the instigation or with the acquiescence of a public official or any person acting in an official capacity.  As for her allegation that state protection was not available, the immigration officer found that the Vietnamese police only reconciled her case as there was insufficient evidence to prosecute the first moneylender.  He found the evidence indicated that the police were willing to perform their duty and it could not be inferred that they were unwilling to or incapable of offering her reasonable protection.  He also rejected her argument that BOR 2 Risk would be engaged by returning her to Vietnam because she would thereby be deprived of treatment for Covid.  Even assuming her fears were real, the immigration officer found it had already been considered in her previous claim that reasonable state protection and internal relocation alternatives are available to lower or negate the perceived risk.  Accordingly, the immigration officer found even assuming there has been any change in circumstance, the change when taken together with the materials previously submitted in support of her previous claim, would not give the subsequent claim a realistic prospect of success.  Hence, he issued the 2022 Notice on behalf of the Director refusing her Request for making a subsequent claim.

The legal principles applicable to judicial review

8.  The function of the court in judicial review is not to re-assess the non‑refoulement claims afresh.  The primary decision-makers in a claim for non‑refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non‑refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[1].

Grounds for judicial review

9.  The Applicant did not advance any grounds of application in her Form 86 or supporting affirmation.  At the hearing, after the legal principles applicable to judicial review had been explained to her, she said she was serving a sentence and would be released in September.  She had telephoned home and was informed that the debts had been settled.  She wanted to return home.  She said an immigration officer had advised her that if she wished to return to Vietnam she may withdraw the leave application.  She said she had signed a letter to the Immigration Department to that effect.  The Court has not received her letter.  Not being satisfied that she fully understood the consequence of withdrawal of her leave application, the Court proceeded to consider the merits of her leave application.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and irrationality in the Decision. 

Overall scrutiny

10.  Having considered the Request, the Director’s 2016 Notice and the Board’s 2018 Decision, and having rigorously examined the 2022 Notice with anxious scrutiny, the Court is satisfied that the immigration officer had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO of the Immigration Ordinance, correctly identified the issues, and properly analyzed the evidence. 

11.  The immigration officer observed a very high standard of fairness.  He advised the Applicant on the law and procedure in prosecuting her Request and advised her of her right to legal representation and the availability of publicly funded legal assistance.  The immigration officer acted fairly.  For the purpose of assessing her subsequent claim, the immigration officer assessed the Applicant’s Request on the basis of the case as she asserted.  It took into consideration the finding of the previous case officer and the Board, in particular availability of state protection and internal relocation, which he was required to under section 37ZO of the Immigration Ordinance.  On the basis of these evidence, he found her dispute with her second moneylender is of the same nature as her dispute with the first moneylender.  It also found the two attacks on the Applicant by the first moneylender’s men and the threats by the second moneylender were not sufficient to amount to significant changes in circumstance which when taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a realistic prospect of success.  On any objective view of the evidence and information provided by the Applicant, it was open to the immigration officer to reach that conclusion.  These are mixed finding of facts and of the law.  Insofar as these are finding of the law, they are absolutely correct. Insofar as these are finding of fact, they are exclusively within the province of the Director, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. This Court could detect no error of law or procedural unfairness in the 2025 Notice.  The 2025 Notice does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review has no realistic prospect of success.

Conclusion

12.  For the above reasons, the Applicant’s application for leave to apply for judicial review of the Director’s decision in his 2022 Notice is refused.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1